10th Circuit: For-profit corporations have religious rights

Corporations are people for political purposes, but can they also be religious? That’s what the 10th Circuit seemed to suggest in a ruling related to Hobby Lobby Stores’ battle over contraception coverage.

The arts and crafts chain, along with its sister company Mardel Inc., are challenging the Affordable Care Act’s requirement that companies either provide insurance coverage for contraception or pay a stiff penalty for failing to do so. The stores, whose owners are Christian, argue that the insurance mandate violates their First Amendment right to freedom of religion and their rights under the Religious Freedom Restoration Act.

The 10th Circuit on Thursday declined to block the contraception mandate, but five of its eight judges did suggest in a majority opinion that certain corporations are entitled to certain religious rights. As justification for their position, the judges cited the Supreme Court’s 2010 ruling in Citizens United v. FEC, which established that corporations have a First Amendment right to make unlimited political donations.

“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” the 10th Circuit ruled. “We cannot see why an individual operating for-profit retains free exercise protections but an individual who incorporates—even as the sole shareholder—does not, even though he engages in the exact same activities as before.”

The court’s Chief Judge Mary Beck Briscoe did not agree with her fellow judges, writing in her dissent that the Citizens United decision applied to the free speech portion of the First Amendment—not its free exercise clause.

“This is nothing short of a radical revision of First Amendment law, as well as the law of corporations,” Briscoe wrote.